What is arbitration?
Arbitration is a legal process in which disputes are resolved by an impartial third party such as a lawyer or retired judge. In a Kaiser arbitration, the person bringing the claim (“Claimant”) and Kaiser present witnesses, including medical experts. There is no jury. The neutral arbitrator acts as the judge and jury. The neutral arbitrator decides the case based upon his or her interpretation of the law and the evidence presented. The decisions of the neutral arbitrator are final, legally binding, and enforceable in court. The decisions, with rare exception, cannot be challenged or changed. There is no right of appeal in a Kaiser arbitration .
Can I avoid arbitration and sue Kaiser in court?
No. If you are a Kaiser member your HMO contract includes the Kaiser Arbitration Agreement which has been upheld many times by California Courts as legal and binding.
Where will the arbitration be held?
Most Kaiser arbitrations are held in the county where the medical negligence occurred. Arbitrations are held in attorneys’ conference rooms or at the office of the neutral arbitrator.
Are arbitration and mediation different?
Yes. Arbitration is a process where a neutral third person (or a panel of 3 persons) hears evidence and makes a final binding decision. Mediation, on the other hand, is a process where a facilitator attempts to help parties solve a dispute by way of settlement. The facilitator is called “the mediator.” Unlike an arbitrator, the mediator may only make suggestions. He or she has no authority to enforce a decision on the parties.
How are neutral arbiters selected?
Neutral arbiters must be well-respected and experienced former litigation attorneys or judges. Kaisers current pool of neutral arbiters is at 309, 109 of who are retired judges. Of the 309 arbitrators used, 127 spend all their time acting in a neutral capacity, while the remaining members divide their time almost equally between claimants side and respondents side work. For a list of Northern California Kaiser Arbitrators click here
Who pays for the Neutral Arbitrator?
In most cases the fee for the neutral arbitrator is split between the parties. However if a claimant qualifies for a Superior Court filing fee waiver, is on SSI, food stamps, or welfare Kaiser will pay the full cost of a neutral in a three arbitrator proceeding.
Can I arbitrate against Kaiser without a lawyer?
Under the terms of the Kaiser Arbitration Rules, any member may proceed “in pro per” (representing themselves). However, often times when Claimants proceed without a lawyer, Kaiser wins. Kaiser submits declarations of experts to the neutral arbitrator, and a decision is rendered regarding the merits of the case without an evidentiary hearing ever having occurred. Unless the case is obvious, straightforward, and modest in amount, Claimants should always first consult an attorney specializing in Kaiser cases to make an intelligent decision as to whether it is prudent to proceed without legal representation.
How long do cases against Kaiser normally take?
While it often depends on the claim, Kaiser has a strict policy for concluding cases within 18 months of the date of filing
Do all medical malpractice cases require expert testimony?
Under current California law, testimony of a medical expert is almost always required to prove medical malpractice. In any medical malpractice case, including Kaiser arbitration claims, the Claimant has the obligation to prove fault or culpability against Kaiser. To do this, an expert is usually required. If the Claimant does not have a medical expert, and Kaiser does, the patient will lose his/her claim.
Are witnesses besides experts needed during the arbitration process?
Yes. An arbitration is no different than a trial in this respect. This means that lay and expert witnesses will be required. In addition, experts in disciplines other than medicine will be required if the Claimant is seeking damages for future lost wages, or for the cost of disability or future treatment.
Can friends or relatives attend my arbitration?
No. Under the rules of the Kaiser system, the hearings are confidential. Only parties and their counsel, and participating witnesses, are permitted to attend.
Are children under the age of 18 bound by the Kaiser arbitration contract?
Yes. Adults and children, so long as they are health plan members, are both bound by the contractual terms of the Kaiser Arbitration agreement. California courts have held that parents have the authority to bind their minor children to the arbitration provisions.
Are newborns bound by the Kaiser contract?
Yes. Two California Court of Appeal decisions have ruled that unborn children become Kaiser members, subject to the Kaiser Arbitration Agreement, immediately upon their birth. The fact that the children themselves are not in existence when the contract was negotiated, or that arbitration was agreed to, has been held to be irrelevant. For this reason, birth injuries are subject to the arbitration provisions of the Kaiser contract.
What is the statute of limitations for a claim against Kaiser?
Although Kaiser cannot be sued, the very same limitations period applies against Kaiser as would apply against any other health care provider in California. The statute of limitations for a Kaiser claim is contained in California Code of Civil Procedure §340.5. In relevant part, that statute requires that an injured person take action within one year of discovering a medically-caused injury and to demand arbitration, or extend the statute of limitations by sending a notice of intent to sue (sometimes referred to as “90 day letters”) under California Code of Civil Procedure §364.
In the case of children under the full age of 6, a claim must be filed within three years, or before their 8th birthday, whichever is longer. Children over the age of eight are bound by a three year statute of limitations.
How can I get information about the merits of my claim?
If you have questions about the existence of a claim, the potential for success at arbitration, the ease or difficulty of resolution, the cost of litigating, or any other matter, you should call the law offices of Walkup, Melodia, Kelly & Schoenberger at 1-888-SFATTYS [1-888-732-8897].
What percentage of Kaiser cases actually proceed to arbitration?
The vast majority of Kaiser cases are informally resolved before arbitration; some are settled in mediation; others are settled without the intervention of a third party; still others are decided by way of “summary judgment,” a procedure whereby the neutral arbitrator reads and considers affidavits and declarations and makes a decision without an evidentiary hearing; and still others are dismissed.
If I prosecute my case, how long will it take to reach resolution?
The time from beginning to end for most Kaiser cases is generally 12 to 14 months. Rule 24 of the Kaiser Rules for Arbitration require that the majority of cases conclude within 18 months from the date an arbitration demand is received.
What is the legal fee charged for representation in a Kaiser case?
The law firm of Walkup, Melodia, Kelly & Schoenberger represents clients on a contingent fee basis. A fee is charged only if the case is successful and money is recovered. The maximum contingent fees applicable in medical negligence cases are set forth in Business & Professions Code §6146. If it is determined that you have a meritorious claim, the team of Kaiser specialists at the Walkup firm will discuss an appropriate contingent fee agreement that provides for fees as set forth in the statute. If your case has merit, you will not pay hourly fees, but the fee will be deducted from any amount recovered.
Who picks the arbitrator?
Once arbitration is demanded, Kaiser’s lawyers and your lawyers are each provided with a list of 12 names. Each side is allowed to strike a specified number of names, and to rank, in order of preference, the remaining names. The Office of the Independent Administrator then compares the lists and selects that neutral who has not been “struck” by either party and who is the most highly ranked by both sides.
Who pays for the arbitration?
In the majority of arbitrations, the cost is shared jointly by Kaiser and the claimant. The most expensive aspect of most Kaiser arbitrations (other than litigation costs of expert witnesses, depositions, etc.) is the cost of the arbitrator’s time. In an arbitration with one arbitrator, the parties split the cost of the neutral. If the parties waive any conflict to the use of a single neutral arbitrator, Kaiser will pay the cost of the arbitrator. In a three-party arbitration, each side pays the entire cost of its party arbitrator, plus one-half of the neutral arbitrator’s costs.
What disputes must be arbitrated?
All disputes arising out of the provisions of services under the Health Plan Agreement must be arbitrated. This language has been interpreted very broadly by the courts, so that the vast majority of injuries which arise out of the Health Plan Agreement, regardless of whether their cause is negligence, intentional conduct or recklessness, are subject to arbitration.
Are there limits on recovery against Kaiser?
Yes. The same limits on recovery that apply in all other medical negligence cases in California are applicable to Kaiser arbitrations. The most unfair limit on recovery is the $250,000 “cap” on general (“non-economic”) damages for pain, suffering, inconvenience, etc. Regardless of how badly a person is hurt, the maximum amount any one person may recover for pain and suffering, disfigurement, embarrassment, or other intangibles, is $250,000. This statutory limit (or “cap”) has existed in California for more than 25 years. It has been repeatedly upheld as constitutional.
Can Kaiser terminate my health plan if I demand arbitration?
No. Kaiser does not have the right to terminate a health plan member’s coverage because he or she brings a claim. Termination of a member’s health plan coverage in retaliation for asserting a claim would be both a breach of contract and a separate, distinct, actionable wrong. Most Kaiser members who prosecute claims against the health plan continue to receive treatment for their medical needs while the arbitration/litigation process is ongoing.
I have a question which is not listed here. What should I do?
If you have questions that have not been answered, you should call the law firm of Walkup, Melodia, Kelly & Schoenberger at 1-888-732-8897 (1-888-SFATTYS).
